IT IS not surprising that the Attorney-General’s role is in the news — this time about his part in any prosecution of his fellow politicians in the loans-for-peerages affair. Francis Bacon, once the Attorney, called the job “the painfullest task in the realm” — a reference surely to the inevitable tensions arising from the Attorney’s various roles.
He is legal adviser to the Government and, in some respects, to Parliament as well. Yet he is also a politician who takes the party whip and a minister who attends all Cabinet meetings. He “superintends” various offices, such as the Crown Prosecution Service, and decides whether to permit or refuse some actions and prosecutions in the “public interest”. He is also, strangely, head of the English Bar.
Given this mix of legal and political roles, it is not easy to shield the Attorney’s decisions from the appearance of political bias. Last week Lord Goldsmith, QC, sought to achieve this by agreeing to appoint external counsel to advise on the peerages affair. Yet he insists on retaining the ultimate “signing off” power, as his constitutional duty. This is in line with the view of the leading academic expert on the subject, Professor John Edwards, who, in 1984, criticised Sam Silkin, a former Attorney-General, who effectively delegated the decision to prosecute Jeremy Thorpe, MP, to outside counsel. Edwards says that the Attorney should possess the “intestinal fortitude” not to escape his role as protector of the public interest, “at whatever cost it might be to (his) personal or party’s fortunes”.
But those were different times. Nowadays we subscribe to the principle of the separation of powers and no longer tolerate the appearance of conflict of interest. Last year we finally attended to the multiple roles of the Lord Chancellor. The Constitutional Reform Act 2005 removed his judicial status and created the independent Judicial Appointments Commission.
The Attorney-General’s role has, however, been left unchanged and I have previously suggested the model of an independent Attorney, appointed from outside government, as is done in Ireland, South Africa and India. However, I am now less sure. Under the Constitutional Reform Act the Lord Chancellor is no longer the head of the judiciary and need not even be a lawyer. If the Attorney-General were appointed from outside Parliament as a special adviser, we could be left with no lawyer at the heart of government.
Does that matter? We do not necessarily want an economist to be Chancellor of the Exchequer or a doctor to head the Department of Health. Yet the judiciary is a branch of government and the law permeates all government departments. And would the appointment of an outsider necessarily ensure that that person were perceived as less politically biased? In those countries that do appoint outside attorneys, their advice is still often seen as influenced by or predisposed towards the aims of the government of the day.
Above all, is there not an advantage in having at the centre of government an Attorney who embodies the traditions of an independent profession and who embraces the values of the rule of law? I have in mind Lord Goldsmith’s clear criticism of Guantanamo Bay and his advocacy in favour of human rights. When he expresses these values as a minister of the Crown, rather than a mere detached outside adviser, they are articulated as expressions of government policy. And surely ministers are more likely to accept such advice because it comes from “one of them”?
Is there a way to ensure the best of both models of Attorney-General — a force for the rule of law in government while reducing or removing any appearance of political bias? One way would be to outsource politically sensitive decisions.More generally, the Constitutional Reform Act may prove a way forward with its duty on the Lord Chancellor to promote the rule of law, as does his new oath of office.
By contrast, the Attorney is not under any such statutory duty, and his oath of office merely requires him to “serve the Queen in all Her Courts of Record”, and “truly counsel the Queen in Her Matters”. In other democracies the real client of the Attorney-General is not the government or monarch but the public, on behalf of whom he has a duty to ensure that the law is observed. In Israel, for example, if the Government does not follow the Attorney-General’ s advice, he or she has the power to institute criminal proceedings against the Government, or refuse to provide it with a legal defence to any court challenge.
So it may be possible to achieve the best of all worlds: a highly qualified lawyer at the heart of government, yet with duties to serve the public interest above party political interest and to promote and enforce the rule of law and other values of a modern constitutional democracy. Such duties would be set out in a statute and reinforced by a revised oath of office. The changes will not release the Attorney from the qualities of “intestinal fortitude”, but would go some way towards ensuring that his impartiality is not tainted by lack of public confidence.
The author is Professor of Law at University College London; the UK’s member on the Counsel of Europe’s Commission for Democracy Through Law (The Venice Commission); and a barrister at Blackstone Chambers
- This is an excerpt from his Justice/Tom Sargant annual memorial lecture at the Law Society on October 17
KEY FACTS
- Political appointee: chief legal adviser to the Government — the office dates from 13th century
- Superintends Treasury Solicitors’ Department and responsible for the Crown Prosecution Service, Serious Fraud Office and Revenue and Customs Prosecution Office
- Takes Government court cases; advises on contempt
